The Criminal Law (Procedure) Amendment Bill of 2022 has been modified to ensure the constitutional rights of accused persons are protected. The adjusted legislation was successfully passed in the National Assembly Monday evening.
The revised bill amends section 72 of the Criminal Law (Procedure) Act, Cap 10:01. It follows the ruling of the Caribbean Court of Justice in the case of Marcus Bisram v The Director of Public Prosecutions (DPP) [2022] CCJ 7 (AJ) GY.
Bisram, who was accused of murder, was discharged by the magistrate who heard the evidence at a Preliminary Inquiry (PI) into the murder charge.
Consequently, the DPP directed the magistrate to reopen the PI and later to commit Bisram to trial, with which the magistrate complied.
Bisram appealed to the CCJ, which agreed that Section 72 of the Criminal Law (Procedure) Act violates the separation of powers and is also inconsistent with Article 144 of the Constitution, which governs a person’s right to a fair hearing.
Section 72 empowered the DPP to direct a magistrate to commit an accused person to stand trial, even if the said magistrate, after conducting a preliminary inquiry, discharges the accused person.
The amendment now provides that the DPP may make an application to a judge of the High Court for a warrant to arrest and commit an accused person who was discharged by a magistrate under section 69 or 71A (4) of the Principal Act.
This application must be made within three months of receipt from the magistrate, of the authenticated copy of the depositions and any other statements or documents involved in the proceedings.
The judge may only grant this application if he or she believes such an action is warranted, based on the evidence placed before the magistrate who discharged the accused. Both the DPP and the discharged person have the right to appeal the decision.
Defending the bill in the National Assembly, Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall, SC, said it prioritises the importance of separation of powers and constitutional rights.
“We believe that this bill accurately captures the jurisprudential aspects of the CCJ’s decision and directives as well as it occurs due protection to the constitutional rights of the accused person,” the AG said.
The CCJ had recommended that section 72 be amended to reflect that the DPP may apply ‘ex parte’ (where orders are granted without waiting for a response from the other side) to a judge of the Supreme Court for an order that the discharged person be arrested and committed if the judge is of the view that the material placed before them justified such a course of action.
“If an accused person is charged with murder and placed before a magistrate, and rightly or wrongly is discharged by that magistrate, therefore is free once again, and the presumption of innocence has not been dismantled, so he is presumed innocent.
“I believe that it would be repugnant to go before a judge ex parte and reinstitute a criminal charge, and get an arrest warrant issued against that person and commit him to stand trial before a judge and jury ex parte, meaning, without him being heard,” AG Nandlall explained.
The AG said the ‘ex parte’ portion of the recommendation was excised in the drafting of the bill, which allows for the preservation and protection of the rights of accused persons.
“The DPP can make the application, and if the judge wishes to hear the application ex parte, that is up to the judge. But if the judge wishes to hear the defendant…we should let the judge determine,” he added.
Meanwhile, Minister of Tourism, Industry and Commerce, Oneidge Walrond, and Member of Parliament, Sanjeev Datadin also supported the bill, noting that it is an important piece of legislation that maintains respect for the rule of law.
The bill also received high commendations from Opposition Members of Parliament, Khemraj Ramjattan and Geeta Chandan-Edmond.
